Final Order 1

Order Details: Copy of Judgment
Pdf Text: Sum. Suit No.663/2023 -: 1 :- Judgement
MHCC010039472020
Presented on : 04092020
Registered on : 14122020
Decided on : 02042024
Duration : YY:MM:DD
03 : 06 : 29
IN THE BOMBAY CITY CIVIL COURT, MAZGAON AT BOMBAY
SUMMARY SUIT NO. 663 OF 2023
(OLD SUMMARY SUIT NO.535 OF 2020)
EXHIBIT NO.34
Mrs. Jayshree Balwantrai Thakkar @
Nathani
Age: 62, Occupation: Housewife,
Residing at: Flat No. 9, Gautam Building,
Tilak Road, Ghatkopar East, Mumbai
400077. ... Plaintiff.
V/s
Dhaval Anand Shah,
Age about 41 years, Occupation: Business.
Residing at: 1401, Deepak Building, R. B.
Mehta Road, Ghatkopar East, Mumbai
400077.
... Defendant.
CORAM: HIS HONOUR JUDGE
SHRI VIRENDRA D. KEDAR
(INCHARGE OF COURT ROOM NO.83)
DATE : 02nd DAY OF APRIL 2024
: Appearances:
Ld. Adv. Vijay Waghela a/w. Adv. Sujata Natekar for the plaintiff.
Ld. Adv. Vijay Sharma for defendant absent.
JUDGMENT
The plaintiff has filed the present Summary suit for recovery of
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Sum. Suit No.663/2023 -: 2 :- Judgement
sum of Rs.16,77,000/ with further interest @ 12% per annum on
principal amount of Rs.13 Lakhs from 01th September 2020 till its full
realization.
Initially the plaintiff has filed Summary Suit No.535 of 2020
against the defendant for recovery of amount. However, as per office
order dated 03.04.2021, the suit is converted to Commercial Suit
No.862 of 2021. Thereafter, as per order dated 03.08.2023 passed by
my Ld. Predecessorincourt the suit is again registered as Summary
Suit.
2. Briefly stated facts of the case are as under:
The defendant is the Principal Officer, Director and incharge of
his company 'Apex Consumer Appliance Private Limited'. The plaintiff
had given friendly Loan of Rs.3 Lakhs on 28.05.2013 vide cheque
No.258019 of Jankalyan Sahakari Bank Ltd from her saving bank
account. At that time, the defendant agreed to pay interest @12% per
annum on quarterly basis. Thereafter, the defendant paid interest of
Rs.30477/ on 12.04.2014 and further interest of Rs.36,000/ on
31.03.2015.
3. The defendant induced the plaintiff to give further friendly loan
of Rs.10 Lakhs. Thus, on the request of the defendant, the plaintiff has
given Rs.10 Lakhs on 06.07.2015 vide cheque No.100021 of Jankalyan
Sahakari Bank Ltd. The defendant agreed to repay said amount with
interest @12% per annum on quarterly basis. The plaintiff's bank
issued the bank certificate of total of Rs.13 Lakhs on 21.08.2020 paid to
the defendant clearly stating that the defendant gave interest of
Rs.78,000/ by cheque dated 11.04.2017 and Rs.39,000/ by cheque
dated 15.03.2018 in favour of the plaintiff.
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4. The defendant gave confirmation of account by email dated
10.05.2017 and accordingly confirmed that Rs.13 Lakhs are due and
payable by the defendant to the plaintiff. The defendant again gave the
confirmation of account by email dated 13.06.2017 and accordingly
confirmed that Rs.13,78,000/ are due and payable by the defendant to
the plaintiff. The defendant gave the confirmation of account by email
dated 08.05.2019 and accordingly confirmed that Rs.14,56,000/ are
due and payable by him to the plaintiff.
5. It is submitted that the defendant paid last interest on
20.04.2018 of Rs.39,000/ and gave confirmation of account on
01.04.2019. The defendant gave his confirmation of his own extract of
ledger account of the plaintiff as per books of the defendant leaving
closing balance of Rs.14,56,000/ as on 01.04.2019. As the defendant
failed to pay the outstanding amount, hence the plaintiff through her
advocate issued notice on 02.07.2020. Despite of receiving notice, the
defendant failed to clear outstanding amount. Hence, the suit.
6. After appearance of the defendant, the plaintiff has taken out
Summons for Judgment No.05 of 2021. My Ld. Predecessorincourt
vide order dated 06.09.2022 had granted conditional leave to defend to
the defendant upon depositing of Rs.13 Lakhs within 30 days from the
date of the order. However, the defendant failed to comply with the
order.
7. The plaintiff has filed affidavit of evidence of PW1, Mrs.
Jayshree Balvantrai Thakkar at Exh.15 and of PW2, Mr. Vivek
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Balwantrao Thakkar at Exh.30. The plaintiff relied on various
documents at Exh.20 to Exh.29 respectively.
8. The Ld. Advocate for the plaintiff filed nondepositor certificate
(Exh.32) on 16.03.2024.
9. Heard the Ld. Advocate for the plaintiff. He filed written notes of
arguments at Exh.33. Perused the record.
10. Following points arise for my determination, to which I have
given my findings with reasons as follows:
Sr.
No.
Points Findings
1. Whether the plaintiff is entitled for
recovery of amount of Rs.16,77,000/
with further interest @ 12% per annum
on principal amount of Rs.13 Lakhs
from the 01th September 2020 till its
full realization, as claimed?
Yes.
2. What Order and Decree? As per final
order.
REASONS
As to Point No.1:
11. The plaintiff has filed affidavit of claim of PW1 Mrs. Jayshree
and PW2 Mr. Vivek. They stated as per the contents of the plaint
averments; hence I do not want to reproduce the same to avoid the
repetition. To substantiate her claim the plaintiff has filed documents;
Copy of bank certificate dated 21.08.2020 of Jankalyan Sahakari Bank
Limited of total Rs.13,00,000/ (Exh.20); Copy of bank certificate dated
21.08.2020 of interest amount lastly given by the defendant to the
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plaintiff by cheque dated 15.03.2018 (Exh.21); Copy of HDFC Bank
certificate dated 28.08.2020 with copy of the deft cheque (Exh.22);
Email dated 10.05.2017 extract of the confirmation of loan debts by the
deft upto 31.03.2017 (Exh.23); Email dated 13.06.2017 extract of the
confirmation of loan debts by the defendant dated 01.04.2017
(Exh.24); Copy of Internet extract dated 08.05.2019 with annexures of
ledger accounts of all (Exh.25); Ledger account of the deft in the books
of the plaintiff upto 30.06.2020 (Exh.26); copy of demand letter dated
02.07.2020 addressed to the deft above named (Exh.27); Postal receipt
dated 03.07.2020 (Exh.28); and Certificate under section 65B of
Evidence of Act ( Exh.29).
12. Herein it is to be noted that, the plaintiff has taken out summons
for judgement No.05 of 2021. My Ld. Predecessorincourt while
deciding it on merit granted conditional leave to defend the suit to
defendant, but subject to condition of depositing principal amount of
Rs.13 Lakhs within 30 days from the date of order. Upon depositing
said amount within specified period, permission to file written
statement is granted to defendant within 30 days from the date of
deposit. However, the defendant failed to deposit the amount. The
plaintiff filed non depositor certificate Exh.32.
13. In view of Order 37 Rule 3 (6) (B) of the Code of Civil
Procedure, “if the defendant is permitted to defend as to the whole or any
part of the claim, the court or judge may direct him to give such security
within such time as may be fixed by the Court of Judge and that, on
failure to give such security within time specified by the Court or Judge or
to carry out such other direction as may have been given by the court or
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Sum. Suit No.663/2023 -: 6 :- Judgement
Judge, the plaintiff shall be entitled to Judgment forthwith.” As discussed
supra, in spite of giving conditional leave to defend, the defendant
failed to comply with the order dated 06.09.2022. therefore, on the
basis of pleadings, oral and documentary evidence the plaintiff duly
proved her claim. Hence, my answer to point no.1 is affirmative.
AS to Point No.2.
14. In view of my above discussion, I pass the following order;
ORDER
1. Summary Suit No.663 of 2023 is Decreed with Cost.
2. The defendant does pay principal amount of Rs.16,77,000/ with
further interest @ 12% per annum on principal amount of Rs.13 Lakhs
from the 01th September 2020 till its full realization
3. Decree be drawn up accordingly.
4. Summary Suit No.663 of 2023 disposed of.
Sd
(Virendra D. Kedar)
Judge, City Civil & Sessions Court,
Date:02.04.2024 Mazgaon, Gr. Mumbai
(Incharge of C. R. No.83.)
Dictated on : 02.04.2024
Transcribed on : 02.04.2024
Signed on : 02.04.2024
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Sum. Suit No.663/2023 -: 7 :- Judgement
“CERTIFIED TO BE TRUE AND CORRECT COPY OF THE ORIGINAL
SIGNED JUDGMENT/ORDER.”
UPLOAD DATE: 03.04.2024 NAME OF STENOGRAPHER
TIME: 05.44 p.m. Mr. Ashok Sudhakar Patil
Name of the Judge (With Court
room no.)
HHJ Shri. Virendra D. Kedar
(InCharge of Court Room No.83)
Date of Pronouncement of
JUDGEMENT/ORDER
02.04.2024
JUDGMENT/ORDER signed by
P.O. on
02.04.2024
JUDGEMENT/ORDER uploaded on 03.04.2024
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